Субъекты международного права

Subjects of international law

A subject of international is an individual body or entity;  recognized or accepted;  as being capable of possessing and exercising; rights and duties;  under international law. (Dixon)

Subjects of international law are States and non- State actors like individuals and international organizations.  Some argue that international non-governmental organizations and multinational companies also fall into the category of subjects of international law.

An entity is a subject of international law if it has “international legal personality”. • In other words, subjects must have rights, powers and duties under international law and they should be able to exercise those rights, powers and duties.  The rights, powers and duties of different subjects change according to their status and functions.  For example, an individual has a right of freedom from torture under international law and States have a duty under international law not to torture individuals or to send them to a country where there is a likelihood of that person being tortured.

 Legal personality also includes the capacity to enforce one’s own rights and to compel other subjects to perform their duties under international law. For example, this means that a subject of international law should be able to: (1) bring claims before international and national courts and tribunals to enforce their rights;  (2) have the ability or power to come into agreements that are binding under international law, for example, treaties;  (3) enjoy immunity from the jurisdiction of foreign courts; and  (4) be subject to obligations under international law.

Not all subjects of international law have the same rights, duties and capacities.  For an example, a diplomat has immunity before foreign courts because he is an agent of the sending State. This is a privilege enjoyed by the State and not the diplomat personally.  This means that, even if a diplomat commits a crime, he cannot be brought before a foreign court to be prosecuted.  One State can bring a claim against another State before the International Court of Justice to enforce its rights, an individual on his own can’t bring a claim against a State before the ICJ.  States have all the capacities mentioned above and individuals have only a few.

Traditionally, states and insurgents have been the only subjects of international law.

States, in addition to controlling a territory, exercise lawmaking and executive functions; they have full legal capacity (ability to be vested with powers, rights and obligations).

Insurgents come into being through their struggle against the state to which they belong. Because insurgents are a destabilizing factor, States are reluctant to accept them or take them into account, unless they can show some of the attributes of sovereignty.  They acquire power through force, their existence is by definition provisional: they either prevail and turn into fully fledged States, or are defeated and disappear.

States are few and very different, which is a complicating factor and explains in part the weakness of international law.  The lack of homogeneity makes the finding of a common ground and the reaching of a consensus rather difficult.  Another complicating factor is the fact that unlike national law (which contains a set of rules dealing with the prerequisites for a acquiring legal personality), international law lacks a set of detailed rules regarding the creation of states.  Such rules can be inferred from custom.

Under international customary rules, there are some requirements which are required for the creation of a state.

Conditions for Statehood. Under traditional international law an aspiring state had to meet the following requirements:  have a defined territory, a permanent population, an effective government; and the capacity to enter into relations with other states. The Montevideo Convention, art. 1  Lays the most widely accepted criteria of statehood in international law. It states “The state as a person of international law should possess the following qualifications:  (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states.  Even today, these conditions continue to be regarded as the fundamental elements of statehood, but they are neither exhaustive nor immutable.  Other factors might be relevant such as self-determination and recognition, but one thing is clear – the relevant framework revolves essentially around territorial effectiveness.

 Defined Territory.  The need for defined territory focuses upon requirement for a particular territorial base upon which to operate.  Therefore, for this reason, it was argued that the “State of Palestine” cannot be regarded as valid state. Why? The Palestinian organizations did not control any part of the territory they claim.  However, note that there is no need for clearly defined boundaries. E.g. Albania, prior to WWI was recognized by many countries as an independent state, although its borders were in dispute. Similarly, Israel has been accepted by the majority of nations, as well as the UN as a valid state, although its borders have not been finally settled and despite its involvement in hostilities with its Arab neighbors.

 Permanent population. The existence of a permanent population is naturally required and there is no specification of a minimum number of inhabitants.

Effective government. As to whether a state has an effective government, the emphasis has been on the control the state exercises over the relevant territory, at the exclusion of all other entities. The degree of control required varies depending on how a state came to existence. Where the prior sovereign over the territory has consented to the creation of a new state under a new government, a low degree of control may be sufficient in satisfying this requirement.

 Capacity to enter into relations with other nations.  States are not the only international law subjects who have this capacity, but this capacity is essential to statehood.  Where this element is not present, there cannot be a state.  The essence of such capacity is independence; it is a formal statement that the state is subject to no other sovereignty.

Continuity and Termination of the Existence of States. Revolutionary or extra-constitutional changes in the government do not have a bearing on the identity of a States. States are bound by international acts performed by previous government. However, changes in the territory of a state, may affect its legal personality.